NAFTA Tribunals and Federal District Court Review

Since its enactment in the early 1990s, The North American Free Trade Agreement ("NAFTA") has been subject to strict criicisms from various political camps, including the left, the right and the liberatarians. Whether it is its alleged intention of circumenventing American soveriegnty, its negative effects on the American labor market, or its restrict effect on state governments, the NAFTA is despised by most anyone who considers themselves a political skeptic. And such criticisms are not without good reason as the NAFTA's stated purpose and legal effect, if actually obeyed by its members, is to restrict the governments involved to thus facilitate a system of free markets and "hands off" government policies. Of course, since neither nation truly endorses capitalism as a governing system, the NAFTA includes plenty of provisions that allow for government intervention, but nonetheless, such exceptions have not stopped NAFTA secret tribunals from bringing about legal remedies to those companies damaged by unreasonable interventionist policies of member governments.

Cases abound in which governments have been ordered by NAFTA tribunals to pay millions of dollars in damages to corporations. Many people reject this as an evil not to be tolerated, but is it any less more evil than protections against eminent domain? Of course not - at least on its face.

But people's main concern over the NAFTA is the subversive effect that the NAFTA may have on their nations' sovereignty. And if history is an accurate guide, then it is likely that in the name of trade facilitation local sovereignty will be forced to stand down in accordance with centralizing authority. See the United States. However, it is also true that without a crisis such as war, economic collapse, or, the new alleged crisis, global warming, it is unlikely that any sovereign power will lose their power without a fight. Nonetheless, it is clear that it is not the war, but the legal developments which precede war that decide a sovereign people's destiny. Such is the basis for why every tyrant, regardless of his tenor or specific brand of tyranny, has gone through the trouble of adopting a philosophical and legal rationale for his actions, for without this intellectual foundation his cause would be seen as a mere force of arms, an evil to be rebelled against. Thus, it is the legal developments and philosophical principles being laid down now that must be watched in order to fully appreciate where it is that we as a people are going.

One such development is a recent piece of litigation featuring a Canadian company, Apotex, who brought suit in U.S. Federal District Court seeking a declaratory judgment in regards to a pending patent. Unfortunately for Apotex, neither the District Court not the Circuit Court believed Apotex to have claim and thus both courts refused to hear their case. Apotex then appealed to the Supreme Court who then denied cert.

In response, Apotex brought action under the NAFTA, challenging all three court decisions as a misapplication of U.S. law, NAFTA expropriation, discrimination and a
violation of its NAFTA rights to a “minimum standard of treatment.” Effectively, what this amounts to is that Apotex is requesting that the NAFTA require the United States government to pay money damages for the Federal Court's refusal to interpret American law properly. Thus, for NAFTA to grant such a ruling, not only will it have to hold the Federal Government to have breached NAFTA, but also tht Federal Courts failed to interpret America law properly. If the NAFTA tribunal was to make such a ruling this would amount to nothing short of a new highest court in the United States, one that is appointed by a secret and non-elected organization of men. Luckily, the Federal Government has assured the public that it will defend this case vigorously, thereby protecting the sanctity of the American judicial process.

But isn't it enough that NAFTA can review these matters at all? If today NAFTA rejects Apotex's claim, will it not already be established that private actors can seek judicial review of Federal Court decisions in a new international tribunal system?

APOTEX INC. v. PFIZER, INC.547 U.S. 1126 (2006)(cert. denied); Apotex Inc. v. United States of America (First Notice of Arbitration); DOMTAR INC. v. THE UNITED STATES OF AMERICA. Relevnt documents can be found at: http://www.state.gov/documents/organization/84142.pdf
and,
http://www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/usa.aspx?lang=en